Fluid Victory

Asked if he will continue to fight DART in court, 89-year-old Roscoe Betz said, "I will if I'm alive."

BRANDON THIBODEAUX

For one brief shining moment last week my man Roscoe Betz was in tall cotton. Dallas County Justice of the Peace Albert B. Cercone handed him a victory on every score.

I wrote about Betz two weeks ago ("Hardballs," June 12, 2008). He's an 89-year-old retiree and World War II B-29 bomber pilot who sued Dallas Area Rapid Transit for causing floods on his property in East Dallas. The day the DallasObserver story hit the streets, the court ruled for him on nine counts and ordered DART to pay the five grand he had sued for.

It took a while for the ruling to reach Betz in the mail. He invited me over. In the sunny front room of his 94-year-old home not far from the Lakewood Country Club, Betz was all smiles and chuckles.

"I told my wife this morning, there's three things in my life that I'm the most proud of," he said. "One is getting my wings in the Army. One is marrying the wife I have. And the third one is getting this thing from Judge Cercone.

"I'm real proud of that. I went against DART's high-powered lawyers, and the judge agreed with me. He ruled in my favor."

He did, indeed. The judge ruled that a rent house Betz owns close to downtown has been repeatedly flooded over the years because DART built a parking garage that functions "as a dam preventing the natural rainwater runoff."

Cercone told DART to pay Betz the five grand he had sued for, which meant that DART would also have to pay the four other plaintiffs Betz had recruited to his cause.

Ah, but Mr. Betz's moment of gratification was to be short-lived. Soon after I called DART for comment, its spokesman, Morgan Lyons, told me DART lawyers had already filed an appeal in the County Court at Law.

I had to call Roscoe Betz and break the news to him. He was philosophical. I asked if he would fight them again, this time in a higher court.

"I will if I'm alive," he said.

Not that DART would take that into account. I'm sure they wouldn't try to outlast Roscoe Betz by dragging the matter into county court and letting some legal moss grow on it for a few years. Nah. Nobody could be that ruthless, especially a public agency paid for by our own tax dollars.

Or could they? The flooding caused by DART's three-story parking garage at Elm and Peak streets has been a threat to life and limb since the building was put up in 1988. Betz was able to present two major engineering studies, one commissioned by DART, both showing that the parking garage was the cause of the flooding.

DART's first line of defense was "sovereign immunity," claiming it couldn't be sued, no matter what, because it was a government agency. DART, you may know, is a regional agency set up by member cities. The people on the DART board don't run for office. They are appointed by city councils.

The judge ruled that DART couldn't claim sovereign immunity because DART was using repeated floods as a way to force Betz and his neighbors off their property without paying them. It's a process the law calls "inverse condemnation," and it's a no-no.

A government can't take your house by causing conditions that will ruin it. Amazing we even have to have a name for that, isn't it? Makes you wonder if we should close both eyes when we go to sleep at night.

Maybe we should ask for a general category called "inverse ruination." The government can't establish conditions that would cause us to shrivel up and die. It might be nice just to have that one on the books.

I say that because just as I was receiving news of Betz's victory and DART's appeal, I also received a second major delivery of private e-mails of the former DART board chair, the late Lynn Flint-Shaw. You may remember that I wrote stories and blog items based on an earlier trove of Shaw e-mails at the time of her death. Shaw and her husband were found dead of gunshots March 10 in what police ruled a murder-suicide.

There would be little reason to troll back through the messy affairs of a person whose life ended so unhappily, except for the pattern that emerges so clearly from this new batch of e-mails. What I wrote about before was the attempt by Shaw, who was a key political advisor to Dallas Mayor Tom Leppert, to set up what she called an "inner circle" of black gatekeepers for the mayor. In repeated e-mails she insisted that Leppert channel all dealings with the black community through Shaw and her cohort.

What emerges from this second batch is more or less the why—the pay-off, the gravy. Shaw should have been barred by DART board ethics rules from even discussing DART contracts with people outside the agency. But it's clear from this e-mail traffic that she was attending meetings with employees of major DART contractors where she urged them to steer subcontracts to her friends.

The backdrop for all this was DART's admission last December—right about the time I filed a major open-records demand about its construction budget—that it was suddenly a billion dollars short of funding for construction projects to which it was already committed. In January, I reported that DART's outside auditor, Deloitte Touche, had an undisclosed side-deal contract with Shaw to talk kids into becoming accountants.

A month later DART announced that it would not seek a full outside audit of the billion-dollar shortfall. Instead, DART plans to go to the next session of the legislature and ask for permission to solve its funding woes by borrowing more money, including a change in the law to eliminate DART having to seek voter approval when it wants to borrow money.

There is a key question here that I don't think has ever been laid out clearly in public. It has to do with where the billion dollars went.

Former Dallas DART board member Joyce Foreman has insisted since the discovery of the shortfall that DART needs to find out what role has been played by so-called "change orders" in construction projects already under way. The change orders were the thrust of my original open-records demand, and believe it or not, I am still struggling for an adequate response.

Here's the deal. Foreman thinks the DART board may have been too soft on major contractors when they came in for contract modifications aimed at getting more money out of the agency. Instead of holding the line and telling contractors to stick to their contracts, she says the board tended to roll over.

Construction costs have gone way up everywhere, of course. But anybody can use that trend as an excuse for flabby controls. Foreman's fear is that DART has done just that, and therein may lie the true explanation for the sudden billion-dollar shortfall in the budget for future construction.

What I see in this second batch of Shaw e-mails is this: Shaw, the chairman of the board, was never in a position to point so much as a pinkie finger at a contractor, because she was so profoundly compromised by her unethical pursuit of subcontracts for her friends.

Subcontracting and patronage are not the only reasons why DART board members might compromise their principles. The suburban members have what may be an even more powerful motivation: Since the budget embarrassment, they have been able to jawbone DART staff into moving their own future rail projects ahead of City of Dallas projects in the funding pipeline. In exchange, they have agreed not to press for the firing of DART president Gary Thomas over the shortfall or press for an outside audit.

Why drag all this up again? Because the problem has never been solved. The answer has never been given. We still don't know where the shortfall came from. There is not going to be any outside audit to tell us. And DART still plans to go to Austin to get voters cut out of the approval process so it can borrow all the money it wants without our say-so.

And that's not even the scary part. The Dallas Morning News editorial page in recent weeks has been starting up a drumbeat in favor of a whole new regional transit authority for the entire Dallas/Fort Worth area. That's a formula for DART to balloon up into an even more immense agency, even farther from the control of voters, even more reminiscent of the Soviet Ministry of Transport.

Follow me back to my man Betz for a minute, will you? Former DART board members Joyce Foreman and Beatrice Martinez both urged the agency to deal more compassionately with Betz and his neighbors on Alcalde. Both women were forced off the board by critics who said they were too "confrontational."

I have a different take. Foreman and Martinez confronted the bureaucrats at DART because Foreman and Martinez saw themselves as representing and sticking up for citizens. For taxpayers.

Look. A good lawyer is like a good dog. Point him in a direction, and he'll tear ass until you call him back. In a politically responsive agency, somebody should have called the DART lawyers off Betz and the people on Alcalde a long time ago. They should have said, "We're a tax-supported public agency. We can't go around using our might to screw taxpayers when common sense says the taxpayers are right."

At DART that doesn't happen. The board tends to be so deeply compromised that it can't separate its own interests from the interests of the very bureaucracy it is supposed to oversee. And they can't remember what taxpayers even look like.

That's why the Roscoe Betz story is no small potatoes for me. I think it's the small story that tells the big story. And the big story ain't good.